Continental Congress with their lives in return for payment of backpay.

Senator SCOTT. This caused the Congress to flee the city.

Mr. HARMON. That is exactly right-to flee the city and seek the peaceful shores of New Jersey to reconvene and decide that this should not happen in the Federal system.

I would like simply to emphasize that this power of the Congress over the protection of its physical presence in the District of Columbia would be strongly preserved under this resolution.

The exclusive legislative authority of the Congress over the Federal District would remain under this proposed amendment. However, the rights of the citizens of the District of Columbia would finally be given their just due, the right to vote for Representatives in the Congress of the United States. That is the distinction which we feel is very important.

Senator BAYH. I appreciate your enforcing that belief.

Is it fair to suggest that there has been a lot of history and a lot of precedents as well as a lot of protection built into our system since that day when the Congress was forced to leave the Capital City?

People have come here, not armed with muskets, but by the hundreds and thousands, petitioning their Government, whether they come by foot or tractor.

We have had an almost unlimited right to petition in Congress, and they have not seen the necessity to flee the city.

Mr. HARMON. I certainly agree with that; the right to petition boisterously for one's rights is a fundamental established in the first amendment of our system of government.

Maintaining that government, and the orderly functions of that government, are also essential.

That is the balance struck, I believe, by the Founding Fathers in article 1, section 8, clause 17, of the Constitution. That principle would be preserved by this resolution.

Senator BAYH. Can you elaborate on the part of your testimony which dealt with the distinction between the citizens of the District and the citizens of territories, if indeed, one of the major concerns we have-taxation without representation-is involved?

I mentioned a moment ago the part of our history we can all remember. We have been through a number of periods when the citizens of the District have given their sons in the cause of protecting this country. A high percentage of District of Columbia residents, compared with some of the States, have been there fighting to protect this country.

They pay taxes for schools, roads, et cetera. Their citizens are restricted by pollution laws; they must conform to standards established by Congress as far as gasoline mileage is concerned. All of these little invasions into the rights of citizens are carried by the citizens of the District.

Are there other territories that have this total involvement in the political processes; for example, the tax burden?

Mr. HARMON. No, Mr. Chairman. There are not.

In fact, in addition to the tax burden which the citizens of the District have to pay, the very budget expended by the local govern

ment of the District, is passed by the Congress of the United States. They have no voting representation there.

They are subject to the draft laws, as you pointed out. They are subject to the tax laws. They are citizens of the constitutionally unique Federal District, unlike the territories which may in the future decide to seek statehood, as one possibility, or even independence, as in the case of the Philippines.

Those territories have their own internal lawmaking bodies to determine their local rights. The citizens of the District of Columbia do not have that possibility before them.

The argument that this would have some carryover effect in the territories, I feel, is without basis because of the significant distinction between the citizens of the District of Columbia and the citizens of a territory of the United States.

Senator BAYH. There have been some efforts made on the part of some territories to let their citizens' votes be cast and counted for President. This is one of the major issues in trying to do away with the electoral college system. I have been a strong supporter of this-to let all citizens have a voice in choosing their President. Many territories have felt that since they are a part of the Union, they should be heard. The compelling argument in this regard is if they should leave Puerto Rico, for example, and move to New York, they should have a right to vote as a citizen of New York.

But this is a different matter, is it not?

Frankly, I am embarrassed to say that for more political reasons this matter has not been pursued. But at least in that instance, citizens who are affected by the acts of the National Government would have a right to vote for the President.

If they left that particular territory, they would no longer be a resident and would not be participating as a citizen of that U.S. territory. I think you have made a good distinction there.

As regards vacancies provided, are you suggesting that we can give the District the right to establish guidelines and actually run their own elections so that we in Congress are not involved, but have the chance to change or restrict those bylaws, if Congress so desired?

Mr. HARMON. That is correct, Mr. Chairman.

Our position is that the Congress would maintain control over the form of government within the District of Columbia. This is under the progressive concept of home rule-the Home Rule Actand the changes which may in future be determined by Congress to be the wise course with respect to the form of government in the District of Columbia.

However, the fundamental principle is that the vacancies occurring in the positions of Members of the House of Representatives or Senators should be filled through the electoral process-by the elected Representatives of the people of the District of Columbia. That, we feel, should take place through the form of government as it exists and as provided by Congress in the District of Columbia. Senator BAYH. You mentioned the time limit being a part of the preamble. Do you take a position on that?

Mr. HARMON. I can simply point out the distinction, Mr. Chairman. In the Senate resolution, there on the first page at the

bottom of the page in the preamble, it provides a 7-year limitation. This was the case with ERA.

However, a significant constitutional question has been raised regarding the ability of the Congress, by simple act of Congress, to extend that period for ratification.

The House Judiciary Committee determined that the possibility of extending this period should be precluded, that the 7 years should be fixed. They decided, I believe constitutionally so, that they could do this by providing the time limit within the body of the amendment, itself.

Therefore, in the House resolution, it is mentioned not only in the preamble, but also in section 4 of the House joint resolution. That was the purpose of their action.

Again, that is a question for Congress to decide-whether in its wisdom it should bind future Congresses with respect to the time limit for ratification of this amendment.

No, I do not take a position on the wisdom of that course one way or the other.

Senator BAYH. That is a wise position for you to take-no position. It is a very controversial issue.

Let me ask you this. Do you know of any other constitutional amendment which was so restricted?

Mr. HARMON. Yes. Several of the constitutional amendmentsthe 18th, for example-had this provision in the body. There are perhaps five or six amendments that carry this 7-year time limitation.

That was adjudicated in the case of Dillon v. Gloss in 1921. The Supreme Court determined that such a limitation was within the province of Congress to include within the body of the amendment itself, and upheld the 18th amendment to a challenge by a criminal defendant who was charging that, contrary to the argument made with respect to the Equal Rights Amendment, the 18th amendment-the 7-year limitation in the 18th amendment-in fact, pushed the States to pass the amendment, and that was an unconstitutional influence on the considered determination of the States whether they would ratify it.

The Court upheld the 18th amendment against that challenge. Senator BAYH. As I recall, the position espoused earlier by the Justice Department was this. If it is in the preamble and not part of the text that is forwarded to the State legislatures for ratification as a procedural vehicle, it can be changed by a majority of Congress?

Mr. HARMON. That is our position.

Senator BAYH. That would not be the case if it were in the body? Mr. HARMON. That is correct, Mr. Chairman.

Senator BAYH. Thank you.

Senator Metzenbaum?

Senator METZENBAUM. I have just one or two questions.

What problems would you see arising should the District of Columbia become a State, vis-a-vis its relationship to the Federal Government in the area of taxes and political questions as to who has jurisdiction?

It occurs to me that there would be more than a few very difficult questions that would come about should any effort be

made to move in that direction. Do you have any thoughts on the subject?

Mr. HARMON. I agree with your observation. The first problem, we believe, is that the constitutional provision, article 1, section 8, clause 17, provides for a Federal District, a seat of Government. To give the District of Columbia statehood would be, in essence, to abolish that provision of the Constitution.

We believe it could not be done without a constitutional amendment.

The second point you make is one of the practical problems presented by such an arrangement. Senator Scott referred to the maxim in his opening statement that there is a need for a concern for the function of the Government of protecting the seat of Government from the necessity of the cooperation and consent of a State government.

The Founding Fathers feared that the seat of Government may be subjected to undue pressures by the parochial interest of the State which, in fact, controlled the services provided to the Federal Government. That is the unique character of the seat of the Federal Government.

That is a very practical issue. I would be opposed to the concept of suddenly stripping that away and doing away with the Federal District.

Senator METZENBAUM. Thank you, Mr. Harmon.

I would also like to thank the administration for its unequivocal support of this legislative proposal for a constitutional amendment. I think it is reassuring.

Senator BAYH. Senator Scott?

Senator SCOTT. Thank you, Mr. Chairman.

Mr. Harmon, you referred several times on pages 5, 7, and 11 of your statement to the uniqueness of the District of Columbia.

You just now indicated that you would not feel that it should become a State. In your research of this matter, have you had any further information with regard to why the Federal City concept was determined when the Constitution was adopted?

We referred to the situation in Philadelphia and the Congress having to flee the city. Is that the primary reason that the Government should not be in an atmosphere that would be subject to undue influence by State interests?

Is that the primary reason, or are there others?

Mr. HARMON. I think there were other reasons, Senator Scott. Apart from the approach by the 80 belligerent soldiers on the Continental Congress in Philadelphia in 1783, at the time of the formation of the Government, there was also strong contention between Philadelphia and New York. They both very strongly wanted to be the seat of Government where the Capital would be established.

This was countered by the opposition from the southern members of the Constitutional Convention. They opposed the location of the Government in the Northeast-Philadelphia or New York.

As part of many compromises struck in the Convention, there was acceptance of the southern proposal-particularly the Virginia proposal for carving out this location on the Potomac. The 10 square miles were not even fixed then. The square area was left

blank, as a matter of fact, in the convention when the debate was ensuring.

Excuse me, that was 10 miles square.

So the idea was that the Federal Government must continue to function in an environment free of parochial influence or pressure represented by the individual States.

The concern was that the location of the Capital in Philadelphia would unduly subject the Members of Congress to the pressures that could be consciously or unconsciously brought upon the Congress by the State of Pennsylvania's control of its services and what happened there.

The same was true of New York.

The idea was to construct something uniquely dedicated to the Federal Government. That would be a district. And that was the reason for coming to the banks of the Potomac and constructing a new Federal City-something that would belong to the National Government and be controlled and responsive to the National Government rather than the parochial interests of the individual States or the individual commercial centers in the northeast or anywhere else.

That, as I understand it, was the reason.

Senator SCOTT. Do any other countries have similar arrangements?

Mr. HARMON. Yes. I am not a scholar in this area, but I have discovered through reading research done by others that there are six or eight countries that have established federal enclaves.

The French do not. Paris is a full thriving city like any other city in France. Brasilia, on the other hand, is a federal enclave within the country of Brazil. There are other countries which have a similar arrangement.

Senator SCOTT. In line with your thoughts about undue pressure being exerted on the Congress and the need for a Federal City, in your judgment, would having two Members of the Senate from the District of Columbia have any effect or undue influence on the Congress-that is, with the seat of Government having two Sena

tors?

Mr. HARMON. It is my thought, again, that there is a distinction between the existence of the Federal District and the power of the Congress as a whole over that District, and the rights of the citizens of the District of Columbia to be represented in the Congress of the United States.

These two Senators would speak for the citizens who elected them-the citizens of the District of Columbia.

There was an evolution that was not contemplated by the Founding Fathers. As I think Senator Bayh pointed out in his opening statement, there were only 1,400 residents in the District when it was established. No one contemplated at that time that Alabama would become a State, that California would become a State, or that Alaska would become a State. No one had been there. No one knew where it was. This was an evolution.

They did contemplate the concept that there would be an expansion of the territory of the United States and that, in fact, U.S. citizens would populate these new areas, and those areas could be admitted to statehood, and that the residents of those States would

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